Derek J. Bloodworth v. N. Hayward

Plaintiff is a former state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On August 23, 2011, defendants Bush, Hayward, Glensor, Johnson, Cox, Ostrom and Ebbitt filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dckt. No. 21.

On June 23, 2011, the court advised plaintiff of the requirements for opposing a motion to dismiss and that failure to oppose such a motion might be deemed a waiver of opposition to the motion. Plaintiff failed to file an opposition.

On October 27, 2011, the court gave plaintiff thirty days to file an opposition or statement of non-opposition and warned him that failure to do so could result in a recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b). The time for acting has passed and plaintiff has not filed an opposition, a statement of no opposition or otherwise responded to the court's order.

Plaintiff has been warned that he must file a response to defendants' motion. Plaintiff has disobeyed this court's orders. The appropriate sanction is dismissal without prejudice.

Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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